Texas Employers' Insurance Ass'n v. Engelke

I respectfully dissent.

The net result of the majority's decision is to hold that a writ of supersedeas comes too late to protect a judgment debtor when it is posted after a sheriff levies under a writ of execution, seizes funds, and delivers them to the district clerk, all as required by the terms of the writ of execution, but before the clerk delivers the funds to the judgment creditor. I would hold: (1) that the directions and procedures contained in the writ of execution here involved made it a process, not an event; (2) that prior to the time relator filed its supersedeas bond and obtained its writ of supersedeas, the execution process was not completed according to the specific, multi-stepped provisions required by this particular Galveston County writ of execution; and (3) that relator's writ of supersedeas suspended the execution process.

In deciding that levy and seizure, not delivery of seized property, finalizes the execution process, I believe the majority misinterprets the wording and effect of rule 47 of the Texas Rules of Appellate Procedure, entitled "Suspension of Enforcement of Judgment Pending Appeal in Civil Cases." Rule 47(j) states:

Effect of Security. Upon the filing and approval of a proper supersedeas bond . . . execution of the judgment or so much thereof as has been superseded, shall be suspended, and if execution has been issued, the clerk shall forthwith issue a writ of supersedeas.

TEX.R.APP.P. 47(j).

I interpret rule 47(j) to establish a relationship between the supersedeas bond and "execution of the judgment," on the one hand, and the writs of execution and supersedeas, on the other. Rule 47(j) states that where a supersedeas bond has been filed and approved, execution of the judgment "shall be suspended." It further provides that where a writ of execution already has been issued, the clerk "shall forthwith issue a writ of supersedeas." In short, a supersedeas bond stops execution, and a writ of supersedeas stops a writ of execution. The rule contains no language of exemption for a writ of execution that has already been levied.

I do not dispute the majority's statement citing Herndonv. Cocke, 138 S.W.2d 298, 300 (Tex.Civ.App. — El Paso 1940, no writ), that a levy of execution creates a lien on the debtor's property in favor of the judgment creditor. However, nothing in that 50-year-old decision states that the judgment creditor's protection under the lien is not satisfactorily replaced by a valid supersedeas bond. The majority assumes the issue to be decided when it states, with no *Page 97 citation to authority, that the judgment debtor's/relator's "later filing of the supersedeas bond did not, and could not, have vacated the fixed rights of the judgment creditor to the proceeds seized pursuant to the levy." What fixed rights? Why not? If levy and seizure under a writ of execution settle a judgment debtor's and creditor's rights, why do we find no statement to that effect in the rules of civil and appellate procedure that regulate supersedeas?

Further, I conclude that none of the case law cited by the majority holds that a judgment creditor's lien, which attached under a writ of execution, aborts or preempts a writ of supersedeas filed after levy of execution, but before delivery of seized property to the judgment creditor. In Andersonv. Lykes, 761 S.W.2d 831, 833 (Tex.App. — Dallas 1988, orig. proceeding), cited by the majority, there was no supersedeas involved at any stage of execution. Rather, it addressed the question of whether a trial court that rendered a money judgment had jurisdiction to entertain the judgment creditor's application for turnover relief, or whether jurisdiction for that purpose lay only in the court of appeals to which an appeal had been perfected. Id. at 833. In dicta, Anderson held that a judgment creditor has a statutory right "to have execution issue to enforce a judgmentwhere no supersedeas bond has been filed or approved."Id. (emphasis added). It did not address the effect of a writ of supersedeas that is issued during the execution process and before the property seized by the sheriff and delivered to the clerk is turned over to the judgment creditor.

In Elliott v. Lester, 126 S.W.2d 756 (Tex.Civ.App. — Dallas 1938, no writ), also cited, the issue was whether a near-insolvent insurer, which had defended a trucking firm in a motor bus collision, could serve as its own surety for an additionally required supersedeas bond. It did not deal with whether a levy under execution negates a supersedeas bond that is in place before funds are delivered to a judgment creditor.

I would hold that relator's writ of supersedeas was effective to supersede the writ of execution during its progress, and would grant relator's motion for leave to file a writ of mandamus, prohibition, and injunction.